Getting in the Right Frame of Mind
Watch a cross-examination. Don’t rely on movies or TV shows. Instead, go into a courtroom and watch a trial. Pay attention to how attorneys ask questions and how witnesses respond. Take a notepad with you so you can capture your thoughts as you watch the cross-examination. Be objective and ask yourself which witnesses seem the most credible. Do witnesses who get defensive seem like they are hiding something? Are you more impressed by someone who never gets rattled and takes their time before answering? Also pay attention to the importance of non-visual cues. Do you make assumptions about a witness based on what they are wearing or whether they have tattoos and flashy jewelry?
Review all of your prior statements. You should expect the lawyer to be well prepared for cross-examination. They have read your deposition testimony, any statements given to police, and your testimony from other trials (if any). You should review all of this testimony as well. Your lawyer should have copies of any deposition testimony and police statements. Call him or her and ask to review that information. You can also get permission to refer to documents in court. Look for contradictions in your statements, even if small. You can expect a lawyer to shine a spotlight on these during cross-examination. Don’t forget statements you made to third parties, even if not written down. Did you talk about the case with your mother? What did you say? If you told a different story to third parties, then the other side could call them to testify at trial depending on how important a witness you are.
Practice your testimony on cross-examination. Ideally, your lawyer will do a dry run practice session. Your lawyer can pretend to be the attorney cross-examining you. After the practice session, you and your lawyer can review your testimony. Practice with a friend or family member if your lawyer won’t do a practice session. Think of what questions the other side might have. You obviously can’t anticipate every question you will be asked. Nevertheless, you will be asked about contradictions in your statements and general questions about your ability to see or hear whatever you are testifying about. Practice your answers. You don’t want to sound rehearsed. But you want to feel comfortable and confident. Look at yourself in a mirror and judge how you appear as you talk.
Inform your lawyer of any problems with your testimony. Your lawyer can defuse any bad fact by addressing it first on direct testimony. For example, if you’ve been convicted of a felony, then your lawyer can bring that up. It will take some of the sting out of the negative information. If you made misstatements in prior testimony (such as a deposition), let your lawyer know. They will give you a chance to correct it on direct testimony. If you have criminal convictions or convictions for perjury (lying), let your lawyer know. You can be sure the other side’s attorney will raise these issues on cross-examination. Let your lawyer know if you have a personal relationship with either party in the case. For example, you might testify on behalf of someone who is also your business partner. Your lawyer needs to know this fact. You can expect the other side will argue you are biased because of your personal relationship.
Realize your attorney can clarify confusion. Lawyers are skilled at asking “yes or no” questions. These aren’t really questions at all. Instead, they are assertions of fact to which you respond by agreeing or disagreeing. You might be tempted to answer one of these questions with, “Yes, but can I explain?” However, you should realize that the attorney cross-examining you probably won’t let you explain your answer. Nevertheless, when you answer at trial, you should still say, “May I explain?” Your lawyer will have a chance to question you again after the other side’s lawyer. This is called “redirect.” On redirect, your lawyer can then let you add context or detail to more fully explain your answer. Note that you must give your best answer since you are under oath. If you are not able to provide the best answer, say so.
Eat a good breakfast the day of trial. Cross-examination can be emotionally draining. You’ll want to be mentally sharp, so eat a solid breakfast on the morning of the trial. You don’t want to crash because of low blood sugar or hunger.
Answering Questions Effectively
Remain calm. Avoid taking anything the attorney says personally. You should realize that they have a job to do and one of their jobs is to rattle you on the witness stand. Accordingly, you should always try to remain calm during cross-examination. No matter how the lawyer acts, pretend that they are not being hostile or obnoxious. Just imagine this is how they always act. If you feel your heart rate pick up, then take a deep breath.
Listen carefully to the question. You want to only answer the question asked and never volunteer anything. If you don’t understand the question, ask the attorney to repeat or rephrase the question. Remember to listen to the words the lawyer asks, not their tone. To test whether you understood the question, repeat it to yourself in your mind. If you can’t repeat it, you didn’t hear it. Say, “I’m sorry, I don’t understand the question.” The attorney should then rephrase the question. Don’t ask for clarification simply to stall for time. Eventually, you will have to answer a legitimate question, so you don’t benefit from delay.
Pause before answering. Don’t cut off the attorney before they complete their question. Jurors will consider that behavior rude. Instead, take a breath and pause before answering. Pausing also gives your attorney a chance to object. If the judge sustains the objection, you don’t have to answer. For this reason, don’t rush to answer after the question is asked. You should wait three to five seconds before responding. During this time you can repeat the question in your mind and think about your answer.
Don’t guess. On cross-examination, a lawyer might ask questions you don’t know the answer to. Instead of guessing, say “I don’t know” or “I can’t remember.” It’s more important to be accurate than to come across as someone who has all of the answers. At the same time, be positive about the details you do remember. If you are asked what the weather was like on a certain day, say, “It was sunny” if you remember that fact. Don’t hedge every answer with, “I think” or “If I remember correctly.”
Answer honestly. Truth is the best defense. It’s also illegal to lie while under oath. You could be prosecuted for perjury, and could be sentenced to jail or forced to pay a heavy fine. However, you don’t have to incriminate yourself. You can plead the fifth. Don’t worry whether or not the truth helps or hurts your side’s case. That’s for the lawyer to handle, not you. Some questions may be embarrassing. For example, expert witnesses sometimes get embarrassed when asked about their hourly rate. You shouldn’t be. You also shouldn’t be embarrassed if you were the victim of a crime. Some people think they are to blame for being cheated or attacked. You aren’t.
Choose your words carefully. There is no contradiction between being careful and honest. Avoid just blurting out whatever comes to mind. Instead, think carefully before answering. It’s important not to provide misleading information. You also don’t want to exaggerate. Try to avoid overly broad statements, particularly those that include the words “always” and “never.”
Speak confidently. A confident witness testifies loudly and slowly enough so they are audible. If you feel nervous, then you might begin breathing from your throat. As a result, you might lose your voice. It is important that jurors and the judge hear you. Breathe from your diaphragm. Reach down and place a hand on your stomach. You should feel your stomach go in and out as you breathe. Also make eye contact with the lawyer. Don’t get into a staring contest, but be sure to make eye contact as you are being questioned. When answering, turn to the jury and look at the jurors. Avoid looking toward the judge or your own side’s lawyer during cross-examination. They can’t answer for you.
Avoid humor. Your instincts might be to defuse a tense situation by making a joke. You should avoid that. People have different tastes in humor, and your joke could be offensive to someone. Furthermore, jurors might think you aren’t treating the trial seriously. If you feel tense, then take a deep breath instead.
Ask to read a document if you are testifying about it. Sometimes, you will be asked about a document you wrote or signed. You should always ask the lawyer to review the document before testifying about it. You probably don’t remember exactly what was written and should refresh your memory. Say, “Can I review it before answering to refresh my memory?” Sometimes lawyers might pretend to quote from a document when the language doesn’t appear in the document. Don’t accept the lawyer’s version. Instead, confirm for yourself what the document says.
Correct mistakes immediately. If you misspoke or weren’t clear, then clarify what you said. Say, “Can I correct something I said?” Look at the attorney and then up at the judge. It’s ultimately up to the judge whether you can speak. Don’t be flustered. A lawyer might blow small errors out of proportion, but that doesn’t mean the jury will assume it is a big deal. Provide the correct information and, if possible, give a short explanation for why you misstated the truth earlier.
Testifying with Non-Verbal Cues
Dress professionally. You don’t get to control the questions the other side’s lawyer asks you on cross-examination. However, you can convey a lot of important information to juries and the judge based on how you look. Generally, you should look professional and dress in clean, neat clothes. Avoid being too casual and also too dressy. You don’t have to wear a suit unless you normally would for your job. Generally, business casual clothing is almost always acceptable. This means dress pants and a dress shirt. Women can also wear a skirt with a blouse or a conservative dress.
Sit still. Jurors will assume you are nervous if you fidget or tap your feet while on the witness stand. Furthermore, jurors will assume you are nervous because you have something to hide. Accordingly, you should remain as calm as possible. Don’t chew gum while on the witness stand. That is disrespectful. If you begin fidgeting, consciously clasp your hands together and rest them in your lap.
Sit up straight. You will appear more confident if you sit up straight with your shoulders back than if you are hunched over. You should actually practice sitting in front of a mirror to make sure you know what it feels like to sit up straight. However, if you are the victim of a crime, then sitting up straight might not work to your advantage. Jurors assume you are afraid of the defendant. If you appear too confident, juries might think you are lying.
Do not show emotion when others testify. Depending on the court, you might be able to sit in the courtroom after you testify. If so, you must remain poker-faced. Remember that jurors can still see you, even after you’ve finished your testimony. How you act will impact how much credibility they give your testimony in the jury room. Sit without showing emotion. Don’t shake your head if you hear another witness lie on the witness stand. If you can’t keep your emotions in check, then leave the courtroom (unless you are the defendant). You can come back when the jury delivers its verdict.
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